Tripura

StateCommission

A/43/2016

The Manager, Birla Sun Life Insurance Co.Ltd. - Complainant(s)

Versus

Shri. Biplab Deb - Opp.Party(s)

Mr. Dip Datta Chowdhury, Mr. B. Saha

20 May 2017

ORDER

 

Tripura State Consumer Disputes Redressal Commission, Agartala.

 

 

Case No.A.43.2016

 

 

 

1. The Manager,

Birla Sun Life Insurance Company Ltd.,

Registered Office: One India Bulls Centre,

Tower-1, 15^th & 16^th Floor, Jupiter Mill Compound,

841, Senapati Bapat Marg, Elphinstone Road,

                                        ….    ….    ….    …. Appellant/Opposite party.

 

                                                           

                   Vs

 

1. Sri Biplab Deb,

S/o Late Raman Chandra Deb,

Resident of Banamalipur, Itakhola Road,

P.O. Agartala Head Post Office, P.S. East Agartala,

District - West Tripura, Pin-799001.

                              ….    ….    ….    …. Respondent/Complainant.

 

 

                                       

Present

Mr. Justice U.B. Saha,

President,

State Commission, Tripura.

 

Mrs. Sobhana Datta,

Member,

State Commission, Tripura.

 

Mr. Narayan Ch. Sharma,

Member,

State Commission, Tripura.

 

 

 

For the Appellant:                                           Mr. Abhijit Kakoti, Adv. 

For the Respondent:                                 Mr. Sampad Choudhury, Adv.

Date of Hearing & Delivery of Judgment:   20.05.2017.

 

J U D G M E N T [O R A L]

 

U.B. Saha,J,

The instant appeal is preferred under Section 15 of the Consumer Protection Act, 1986 by the appellant, Manager, Birla Sun Life Insurance Company Ltd. against the judgment dated 27.06.2016 passed by the Ld. District Consumers Disputes Redressal Forum (hereinafter referred to as District Forum), West Tripura, Agartala  in Case No. C.C. 68 of 2015 on the ground that the Ld. District Forum committed error treating the respondent as a consumer and also CABG (Coronary Artery Bypass Grafting) as heart attack.

2. Heard Mr. Abhijit Kakoti, Ld. Counsel appearing on behalf of the appellant, Birla Sun Life Insurance Company Ltd. (hereinafter referred to as opposite party/Insurance Company) as well as Mr. Sampad Choudhury, Ld. Counsel appearing for the respondent, Sri Biplab Deb (hereinafter referred to as complainant).
3. Brief facts needed to be discussed are as follows:-

The respondent-complainant purchased Birla Sun Life Insurance Policy, namely, ‘Dream Endowment Plan’ for which he paid Annual Policy Premium of Rs.20,781.40 out of which Basic Premium is Rs.16,000/- and Rider Premium is Rs.4,781.40. Annual Policy Premium was paid by two instalments and each Instalment Premium was of Rs.10,390.70. The said Policy commenced from 27.12.2011 and would be ended on 27.12.2041. Basic sum assured was Rs.1,20,000/-. Admittedly, he had paid the Basic Premium of Rs.16,000/- as well as the Rider Premium of Rs.4,781.40. In the first week of June 2012, the complainant felt pain in the chest and underwent treatment at Agartala and the doctor of Agartala advised him to go Narayana Hrudayalaya Hospital, Bangalore. Accordingly, he went to Narayana Hrudayalaya Hospital. The doctors of Narayana Hrudayalaya Hospital diagnosed that the complainant suffered from coronary artery disease and immediately he needed open-heart surgery to prevent stroke or heart attack. Accordingly, he underwent open-heart surgery for prevention of heart attack or stroke. After completion of open-heart surgery, the complainant approached the opposite party no.2, Branch Manager of Birla Sun Life Insurance Company to get the benefit under Rider Sum Benefit scheme as he subscribed premium for the said benefit. On 02.05.13, the Manager, Birla Sun Life Insurance Company, the opposite party no.2, turned down his request stating that he was not entitled to get Rider Benefit for his critical illness as the treatment was not covered under the heading 'Heart Attack'. So, the complainant filed an application under Section 12 of the Consumer Protection Act, 1986 before the District Forum for getting the benefit of Rider Sum Benefit scheme as well as compensation for causing harassment and litigation cost.

The appellant-opposite party nos.1 & 2, Birla Sun Life Insurance Company Ltd. appeared and filed their written statement denying the claim of the complainant. The only contention raised by the opposite parties is that the complainant is not a consumer and his hospitalization at Narayana Hrudayalaya, Bangalore was not within the knowledge of the opposite parties and the condition with which the complainant was diagnosed as CABG cannot be termed as 'Cardiac Heart Attack' as per medical science. It is also stated that the Coronary Artery Bypass Grafting was done to improve the blood flow into the heart and such surgery is termed as CABG to treat people who have severe Coronary Artery Heart attack, but the same does not fall under the heart attack heading as described in the policy. Therefore, the complainant is not entitled to get any compensation as sought for.

The Ld. District Forum after considering the pleadings of the parties has taken up the following points for deciding the complaint case which are as follows:-

1. Whether treatment done to the complainant was related to heart attack or stroke?
2. Whether the petitioner is entitled to get compensation for deficiency of service?

4. The complainant has produced ‘Dream Endowment Plan’ i.e. the policy renewal premium receipt, letter dated 31.03.13, prescription of Narayana Hurdayalaya, operation note, treating doctors certificate, discharge certificate of complainant, bill cum receipt of Narayana Hrudayalaya Hospital. Complainant also examined himself as one of the witness in support of his complaint case. 
5. On the other hand, opposite parties did not produce any evidence in spite of giving several chances and they were also allowed time for producing any expert or cardiologist.
6. The Ld. District Forum after hearing the Ld. Counsel of the parties and considering the evidence on record passed the impugned judgment.
7. Mr. Kakoti, Ld. Counsel appearing for the appellant while urging for setting aside the impugned judgment would contend that the Ld. District Forum ought not to have held that the complainant is a consumer in view of the judgment passed by the Hon’ble National Consumer Disputes Redressal Commission (hereinafter referred to as National Commission) in Ram Lal Aggarwalla Vs. Bajaj Allianz Life Insurance Co. Ltd., Bajaj Allianz Insurance Co. Ltd. & UTI Bank Ltd. (In Revision Petition No. 658 of 2012) reported in III (2013) CPJ 203 (NC). He also submits that according to the Policy, the condition with which the complainant was diagnosed is an apprehension of heart attack and cannot in any way be termed as cardiac arrest/heart attack as per the terms of medical science. He finally submits that there is no deficiency in service on part of the appellant-Insurance Company as the complainant purchased the policy for commercial purpose.
8. Per contra, Mr. Choudhury, Ld. Counsel appearing for the respondent-complainant while supporting the impugned judgment of the District Forum submits that the Ld. District Forum rightly decided the complaint case, as the 'Dream Endowment Plan' i.e. the Policy has two parts - one is for the purpose of investment and another is a rider for critical illness. He further submits that the appellant has, admittedly, received the premium on different heads that the Basic Premium of Rs.16,000/- and the Rider Premium of Rs.4,781.40. Out of Basic Premium amounting to Rs.16,000/-, they have invested sometime Rs.14,480/- and sometime Rs.14,640/- etc., which would be evident from the Sales Illustration regarding the ‘Dream Endowment Plan’ and there is nothing in the sales illustration that remaining Rider Premium was also invested by them. Thus, according to him, the Rider Premium was received by the appellant only for the purpose of health benefit of the policyholder. He again submits that the complainant is a consumer so far the Rider Premium is concerned, but not for the Basic Premium which was paid for commercial purpose. In support of his aforesaid contention, he has placed reliance on a judgment of Hon’ble National Consumer Disputes Redressal Commission, New Delhi in Paramjit Kaur Vs Aviva Life Insurance Co. India Ltd. through its Branch Manager, Near Axis Bank, TH Mall, Bathinda, Punjab (First Appeal No. 1173 of 2014), wherein the Hon’ble National Commission while examining the order of State Commission of Punjab in a case similar to the case in hand and considered the judgment of Ram Lal Aggarwalla (supra) and distinguished the same and finally held that the appellant, Paramjit Kaur purchased the policy i.e. the 'Unit Like Plan' with the principal basic sum insured for Rs.14,00,000/-, along with double accidental benefit is a consumer and the complaint filed by the appellant is maintainable before the State Commission and ultimately, set aside the judgment of the State Commission of Punjab. He has finally contended that the meaning of heart attack is defined in the Rider Policy itself, wherein it is mentioned that, “Heart Attack” means the first occurrence of heart attack or myocardial infraction which means the death of a portion of the heart muscle as a result of an acute interruption of blood supply to the myocardium. In the instant case, the complainant is covered by the second part of definition of the ‘Heart Attack’.
9. We have gone through the submission of the Ld. Counsel appearing for the parties as well as the impugned judgment and day-to-day order passed by the Ld. District Forum. It appears from the order dated 04.04.2016, that the appellant-opposite party cross-examined the complainant and prayed for time to produced evidence which was allowed and the matter was fixed on 23.04.2016 for producing evidence by the appellant-opposite party. On 23.04.2016, no step was taken from the opposite party side and again the matter was fixed on 07.05.2016 for evidence by the opposite party. On 07.05.2016, opposite party again prayed for time to adduce evidence and the prayer was allowed as last chance on condition that the opposite party shall pay adjournment cost of Rs.500/- to the complainant and the matter was again fixed on 17.05.2016 for evidence by the opposite party. Accordingly, the matter was taken on 17.05.2016, but no step was taken by the opposite party and no evidence was also given, though on three previous dates, they failed to produce evidence. Therefore, evidence by the opposite party stood closed by the District Forum. Thereafter, on 27.06.2016, the Ld. District Forum passed the impugned judgment. In the impugned judgment, the Ld. District Forum dealt with the definition of ‘Heart Attack’ and gave its reasons which would be evident from Paragraph-7,8 & 9 of the impugned judgment which are as follows:-

“7. The contention of the opposite party is that as per policy condition petitioner is entitled to get critical illness benefit. In regard he is only entitled to get treatment cost for critical illness like, stroke, heart attack, cancer etc. Now the question is whether under Rider Provision the person is only entitled to get the benefit after heart attack or before heart attack. We have gone through the terms and conditions where heart attack is defined. As per definition, Heart attack is ''first occurrence on heart attack or myocardial infraction which means death of portion of heart muscle as a result of acute interruption of blood supply to the myocardium''. Coronary artery bypass grafting surgery is done for regular supply of blood into the myocardium. It is done to treat the coronary artery disease. Coronary artery disease is the narrowing of coronary arteries-, the blood vessels that supply oxygen and nutrients to the heart muscle. So this bypass surgery was done to treat the block arteries. An artery from the wrist may be used and it is attached above the blockage. The other end is attached below the blockage. This is called coronary artery bypass surgery. Its symptom is chest pain, palpitations, abnormal heart rate, tiredness etc. 

8. In this case, the contention of the Birla Sun Life Insurance Company is that the petitioner did not suffer 'heart attack' or 'stroke'. Admittedly after the diagnosis of the critical illness he survived for more than 30 days. The diagnosis occurred while the rider scheme was in effect. In such a case benefit amount shall be equal to the riders sum assured payable upon first occurrence of heart attack. There is no specific evidence before us that heart attack was occurred. But we are satisfied that treatment was in respect of prevention of heart attack. The person was on the brink of heart attack as his coronary artery was narrow. In order to prevent it surgery was done. Insurance policy is to be construed having reference only to stipulation contained in it and no artificial farfetched meaning can be given to the words. The duty of the court is to interpret the word in which the contract is expressed by the parties. It is not that the court to make new contract however, reasonable if the parties do not make it necessary. 

9. In this case it is clear that the treatment done at Naryana Hrudayalaya was in respect of heart attack. As per Rider provision when there was acute interruption of blood supply then the portion of heart muscle may die. In this case on the prescription CABG was advised. He underwent 'Elective Coronary Bypass Grafting' as per the certificate. From the prescription nothing found to support the death of heart muscle but the operation was done for saving the heart muscle. Therefore, from the above discussions it is clear that as per policy condition petitioner was entitled to get insured amount as his treatment related to heart attack and cardiovascular disease related to supply of blood into the heart muscle. The 'Dream Endowment Plan' policy support that clause of policy in regard to treatment cost for critical illness to be paid by the company. The amount was Rs.1,16,000/-. Petitioner claimed the amount but company, O.P. No.1 and 2 repudiated his claim on mis-interpretation of terms and condition. This is deficiency of service. Petitioner is therefore, entitled to get compensation for this deficiency of service. As the O.P. failed to understand the clause clearly and medical certificate also not clear on this fact, we consider that deficiency is not full but partly it was done. So for the deficiency of service, we direct the Insurance company to pay compensation Rs.10,000/- and also litigation cost Rs.5000/-. In addition the O.P. is to pay the critical illness benefit Rs.1,16,000/- to the petitioner. Points are decided accordingly.”

10. In Paramjit Kaur Vs Aviva Life Insurance Co. India Ltd. (supra) The Hon’ble National Commission, while distinguishing the case of Ram Lal Aggarwalla Vs Bajaj Allianz Life Insurance Co. Ltd. & Anr. (supra) specifically held that in case of Ram Lal Aggarwalla, insured took the policy of ‘Unit Gain Super Diamond Policy’, whereas in the case of Paramjit Kaur, the appellant purchased policy for covering life as well as accidental benefit and the said policy cannot be equated with policy in the case of Ram Lal Aggarwalla (supra). In the said judgment, the Hon’ble National Commission also held that the Ld. State Commission of Punjab committed error in dismissing the complaint as not maintainable as policy was for investment in speculative business and finally appeal was allowed and the impugned order passed by the Punjab State Commission was set aside and held that the complaint filed by Paramjit Kaur, the complainant therein, is maintainable before the Ld. State Commission and the Ld. State Commission was directed to decide complaint on merits as per law. In the instant case also, the policy purchased by the respondent-complainant for ‘Dream Endowment Plan’ for which the respondent-complainant paid Annual Policy Premium of Rs.20,781.40 out of which Basic Premium is Rs.16,000/- and Rider Premium is Rs.4,781.40 and admittedly, the Basic Premium is for investment in business and the Rider Premium is for critical illness. Therefore, according to us, the case in hand is fully covered by the judgment in Paramjit Kaur (supra) and the respondent-complainant is a consumer. Thus, we are unable to accept the contention of Mr. Kakoti, Ld. Counsel for the appellant that the respondent-complainant is not a consumer.
11. We have also gone through the judgment of Delhi State Consumer Disputes Redressal Commission in ICICI Prudential Life Insurance Company Limited Vs Anil Kumar Jain, 2010 (2) C.P.R. 480, wherein, the respondent-complainant purchased a Life Insurance Policy containing nine Critical Illness Benefits and was suffered from heart attack and was hospitalized. After he was discharged, he claimed for reimbursement of the treatment cost and the policy benefit from the appellant-Insurance Company on the basis of his policy, but the opposite party-Insurance Company repudiated his claim informing that the illness for which he lodged reimbursement claim was not covered by the Critical Illness Benefit Rider provided in the insurance policy and the District Forum (Central) decided the matter ex parte and allowed the complaint case and awarded an amount of Rs.1,91,437/- towards reimbursement of medical expenses with interest @ 9% and a compensation of Rs.5,000/- along with litigation costs of Rs.3,000/- in favour of the complainant and the appellant-Insurance Company preferred an appeal before the Delhi State Consumer Disputes Redressal Commission wherein, they declined to pay the compensation, saying that the said nature of disease is not included in the definition of Heart Attack given in the policy. The Discharge Summary Report of the complainant showed that the complainant suffered with Unstable Angina, which means a condition where there is reduced blood supply to the Heart, while in Myocardial Infraction which in common parlance is called as ‘Heart Attack’, there is complete cessation of blood supply to the Heart. Thus the two conditions of the Heart are distinct to each other while in former there is reduced blood supply while in later there is no blood supply to the Heart and therefore Unstable Angina will not be covered under the meaning of the Heart Attack contained in the Policy. Besides, it appears from the discharge summary, the ECG of the complainant was normal, the two tests, which are diagnostic for heart attack viz. CPK & CK-MB tests relating to Cardiac Enzymes were also reported normal while according to the Policy in case of Heart Attack, the ECG must have changes in the ECG and Elevation of Cardiac Enzymes. The State Commission of Delhi while dismissing the appeal and affirming the judgment of the District Forum observed in Paragraph-12 of the judgment as under:-

12. This Commission is wholly in disagreement with the view, that because of non fulfillment of aforesaid condition the complainant will not be entitled for compensation from the Insurance Company. It is manifest that the respondent suffered a serious Heart Ailment and an arterie was found blocked and a stent was placed. It was a very serious condition and if such a Heart Ailment is not compensatable, what other disease, will be required for grant of reimbursement. It is not open to the Insurance Company to place conditions which are unlikely to be fulfilled with a view to create a device to escape payment of compensation. It amounts to defrauding and cheating the customer. It is not open to Insurance Company to provide such particulars and details of the disease which quite often do not appear and which may provide a ground to the Insurance Company to avoid Payment of Compensation Symptoms appearing in all kinds of Heart Ailment cannot always be the same, and merely because all symptoms are not 100% the same, the Insurance Company cannot avoid compensation. The ailment suffered by the respondent was highly serious and life threatening and the spirit and purport of the agreement must be assumed to be such, as to provide for such serious disease of Heart.

12. We are unable to accept the contention of Mr. Kakoti that both the Basic Premium and the Rider Premium paid by the complainant was used for the commercial purpose. The Ld. Counsel for the respondent-complainant has placed before us the Sales Illustration in regard to the Policy of the respondent-complainant. We have perused the said sale illustration for better appreciation, the same is given below:-

Birla Sun Life Insurance

Dream Endowment Plan

Your Sales Illustration

 

Non Guaranteed Policy Values @10% Gross Return

Policy Year	Policy Premium	Premium Allocation Charge	Net Invested Premium	Guaranteed Addition	Gross Return	Fund Mgmt Charge	Policy Admin Charge	Mortality Charge	Total Charges	Service Tax	Fund Value	Surrender Benefit	Death Benefit	Commission Payable
1	16,000	1,520	14,480	0	1,031	133	240	466	2,359	244	14,427	12,427	134,427	800
2	16,000	1,360	14,640	0	2,492	322	240	508	2,430	253	30,236	28,736	150,236	800
3	16,000	1,120	14,880	0	4,098	529	240	555	2,444	256	47,634	46,834	167,634	800
4	16,000	1,120	14,880	0	5,844	754	240	605	2,719	286	66,472	66,472	186,472	800
5	16,000	1,120	14,880	0	7,734	999	240	659	3,018	319	86,869	86,869	206,869	800

 

13. Considering all aspects of the matter, we are also unable to accept the contention of Mr. Kakoti that the case of the complainant is not covered under the definition of ‘heart attack’ as per the policy, as according to us, ‘heart attack’ has various forms. Myocardial Infraction is the result of acute interruption of blood supply to the myocardium and the Coronary Artery Bypass Grafting surgery is done for regular supply of the blood into the myocardium and the same is done to treat the coronary artery disease. More so, the appellant-Insurance Company was allowed so many times for producing any expert or cardiologist in support of their contention, but they did not produce any expert to prove that the CABG is not come within the purview of the heart attack. Therefore, according to us, in absence of any expert evidence, the Ld. District Forum did not commit any error in the impugned judgment. More so, we are also with the same view like the Delhi State Consumer Disputes Redressal Commission in ICICI Prudential Life Insurance Vs Anil Kumar Jain (supra) that, “Symptoms appearing in all kinds of Heart Ailment cannot always be the same, and merely because all symptoms are not 100% the same, the Insurance Company cannot avoid compensation.” In the instant case also, ailments suffered by the respondent-complainant was highly serious and life threatening and the spirit and purport of the agreement must be assumed to be such, as to provide for such serious disease of Heart.
14. For the reasons and discussion made above, the appeal is dismissed being devoid of merit. No order as to costs.

Send down the records to the Ld. District Forum, West Tripura, Agartala.

 

 

MEMBER State Commission Tripura MEMBER State Commission Tripura PRESIDENT State Commission Tripura